Dan is right on this one. Here is the vote. Killing citizens without charge or trial based on secret laws is the power of kings. If history is any guide, it promises trouble for our country. - promoted by Bob_Neer

If we were still playing by the old rules, this nominee would not be on his way to the First Circuit Appeals Court. But with the new rules by Harry Reid, it only takes 50 votes to advance a nominee. Much to my surprise, Ed Markey and Liz Warren voted in favor of Obama’s nominee to the First Circuit. This nominee wrote memos which supports the killing of U.S. citizens overseas who are suspected of being terrorists. Keep in mind, we are not talking about people on the battlefield.

Sen. Rand Paul took to the senate floor pleading for Democrats to help block this nominee. Only two, Landrieu and Manchin joined Sen. Paul by voting no. Sen Paul said “I rise today in opposition to killing American citizens without trials. I rise today to oppose the nomination of anyone who would argue that the President has the power to kill American citizens not involved in combat. I rise today to say that there is no legal precedent for killing American citizens not directly involved in combat and that any nominee who rubber stamps and grants such power to a President is not worthy of being placed one step away from the Supreme Court.”

Rand Paul went on to say the Bill of Rights is for those who are the most unpopular, even for suspected terrorists. He also cited the outrage Democrats had for President George W. Bush detaining terror suspects at GITMO. So let me get this straight, it’s bad to detain people without a trial (Bush bad), but its okay to kill that same person with a drone (Obama good).

He has no place on the bench and his wife has no place in the Corner Office as long as they espouse these extrajudicial executive ordered killings. Just because we bleed blue, doesn’t mean we should support this extraordinary and unprecedented expansion of executive power. It’s a symbolic vote but one that needs to be taken.

The same publication that she and Philip Heymann put out in 2005 that caused her some headaches regarding waterboarding also indicated that under no circumstances was the targeted killing of an American citizen permissible. So, there’s that.

Maybe it’s just the institution. There seems to be a wide separation in attempts at appearances and official rhetoric with what is actually going on.

On a side note today the President went on about how veteran services were a “major focus of this administration”. Really, and yet the current scandal got all the way to the newspapers without you being aware of it? That’s like saying, “I was very alert but still crashed the car.” At least if you said “I wasn’t paying attention” people would cut you a little slack.

While I agree the Republicans in Congress have made it difficult to close the prison the President has not made many attempts to move the ball in six years. He has given another “within one year” promise this year so we’ll see.

Voting to confirm isn’t quite the same as “backing drone strikes on Americans” as Dan asserts.

I also don’t understand why people are so upset about extremely rare drone strikes on Americans who are deemed terrorists when they don’t seem especially concerned by more common abuses of power closer to home. We are all millions of times more likely to be shot by an overzealous law enforcement officer than we are to be killed by a drone strike while overseas.

I think the idea is, if the President can order drones to kill threats over there it won’t be long until he can do it over here. We already saw with the NDAA that rounding up dissidents has become a bipartisan policy again, as is detaining citizens in GITMO style fashion on US soil. Certainly we need to significantly reform the criminal justice code, end the prison-industrial complex, the drug war, and pursue restorative rather than retributive justice*. But it’s all connected and it seems we are more willing to sacrifice our democratic bona fides overseas, so it’s best to stop it over there first.

*To his credit again, Paul is also working on these issues. And a general note-instead of attacking him as a hypocrite since he is wrong on so many other issues, it may make more sense to attack the Democrats who are right on so many other issues but so clearly wrong on this one.

Obviously the expansion of the use of drones is troubling and causes us much grief in certain parts of the world. But the rest of the world is not going to care if we only exclude drone strikes on American citizens while continuing to kill everyone else. And why exactly does an American citizen who has left the country and is actively plotting against us need to get any more due process than anyone other bad guy? Playing devil’s advocate, it seems like if I were a bad guy I would want to make sure that I recruited a couple of Americans to hang out in my hideout with me.

Killing a dangerous member of enemy forces in Yeman certainly is covered by the AUMF. Paul is doing origami with the Constitution suggesting we should’ve knocked on the terrorist’s door with a subpoena first.

To argue that the AUMF allows unlimited drone strikes overseas or against American citizens without due process. They have also caused irreparable damage to our foreign policy. I am ashamed so many ‘good Democrats/good liberals/good progressives’ fail to see how in many regards, Obama is actually acting even less restrained and less in the long term interests and certainly less in the stated values of our country than his predecessor on these fronts.

I used to dislike her vote, but Barbara Lee is looking more and more prescient every day. We should never have passed that version of the AUMF, it defines terrorism so broadly that we may never have an end point to these powers. It will always find another monster for us to slay.

Some of us believe that even a “dangerous member of enemy forces” who is an American citizen has a right to a trial by jury before being executed. I remind you that the death penalty is illegal here in Massachusetts.

I’m no supporter of Mr. Paul.

In this case, however, I prefer his “origami” of the Constitution to your outright shredding.

Where does the Constitution say that we have to follow some judicial process when pursuing international terrorists outside of our own borders. Even in Colonial days there was precedent for pursing and killing pirates in international waters. I don’t think the legal issue is as clear cut as you would wish it to be.

Personally, I agree that we should attempt to physically detain and try terrorists, but there are going to be times when that will be impossible. Do we then just let bad guys act with impunity knowing that we can neither apprehend nor kill them?

because he was an American citizen who had not (as far as I know) renounced his citizenship, taken up arms against the U.S. (yes, he said bad things, but did it go beyond that?), or otherwise forfeited the protections the Constitution affords citizens.

I don’t think the Constitution is crystal clear on what happens outside to our citizens when they are residing in other countries outside of our jurisdiction.

If it was crystal clear then it would already have been ruled so by a court by now.

But I guess it is at least a Constitutional issue in the sense that there can be reasonable debate as to what protections, if any, the Constitution provides in such cases.

Anyway, here’s a thought exercise. Imagine that the target was not an American citizen, but an undocumented immigrant from a very young age who resided in America his whole life before leaving to join a foreign terrorist group. Would they be protected? Morally, I don’t see much difference between someone who has lived here their entire life and is officially a citizen versus someone who isn’t.

To me the issue is not so much whether we should not be targeting American citizens, but whether we should be targeting *anyone* without some formal open judicial proceeding.

there might not be a difference, but legally there is. We have to draw citizenship lines somewhere, even if they’re imperfect. It can’t be right that our government should be able to target U.S. citizens because it would be able to target noncitizens who are arguably “just as American.” That seems like the tail wagging the dog.

Nor do I think that the government should be able to do outside our borders what it couldn’t do legally inside the borders. Normally a country’s jurisdiction over someone is reduced, not enhanced, when that person’s not in that country.

Personally, I don’t believe we should be killing anyone with drone strikes, but that’s another issue.

Clearly one could find some sort of legal justification for drawing a distinction between targeting Americans vs. non-Americans. But why should we be focused on that distinction ourselves?

If we believe that such tactics are inherently wrong, that is the battle we should be fighting, rather than focusing on the very rare subset of cases that involve American citizens. So let’s say that we get a definitive ruling from the Supreme Court stating that American citizens cannot be targeted in this way? What has that gained us?

One doesn’t have to work very hard to find a “legal justification for drawing a distinction between targeting Americans vs. non-Americans”.

The gain from that, in this discussion, is insight into the suitability of David Barron for his position, and insight into the incorrect votes of both Mr. Markey and Ms. Warren.

Mr. Barron had a chance to draw that distinction, and he chose to not do so. In my view, that’s bad for America today and in our future.

Mr. Barron should not have been nominated and should not have been confirmed. It’s the first significant issue that I’m aware of where Ms. Warren has taken the wrong side (I think she was wrong on the flood maps as well).

I got the impression from your comments above that you didn’t consider such tactics inherently wrong, but rather supported the availability of drone strikes in cases where – citizen or not – a “bad guy” could not be apprehended. I’m sorry if I got that wrong.

I think the reason people have focused on the legal issues of citizen vs. noncitizen in David Barron’s case is that his memo wipes away one of the few identifying limiting principles concerning this sort of strike.

During Senate floor remarks, Sen. Ed Markey (D-Mass.) also urged senators not to equate their views on the drone program with Barron, who, as an attorney, was simply doing his job by providing his legal analysis of the policy.

“Let’s be clear: Barron is … certainly not responsible for the administration’s drone policy or the decisions to authorize an attack,” Markey said. “He is a lawyer who was asked to do legal analysis for his client: the president of the United States.”

I’ve paid LOTS of money for “legal analysis” from my divorce attorneys in the past that provided results I was extremely unhappy with (regarding things like child support amounts and visitation rights).

My objection is to the CONTENT of the legal analysis provided by Mr. Barron. That same excuse is how we ended up with war criminals in the Oval Office ordering torture.

As I wrote elsewhere, the job of the office of which Barron was acting head is not to represent the administration in court. It is to provide it with legal advice, and a good legal advisor sometimes tells the client – even if the client is the President – that the client can’t do what he wants to do. Barron didn’t do that in this case; whether that’s because Barron actually thinks the drone strike was legal, or because he told the President what he thought the President wanted to hear, or he was ordered to reach a certain conclusion, we don’t know. But Markey’s comment strikes me as basically irrelevant.

First of all, you presume that the action is illegal. Based on the public information available about the Barron memo, it was addressing what is clearly an open constitutional question.

But further, your position seems to hold the President’s lawyer responsible for the actions of the President. Ideally I’d want any President looking at any issue to consider all options, evaluate them all from a policy perspective, a legal perspective, a fiscal perspective, a moral perspective, etc then make the final call based on the totality of the circumstances. The buck should stop with the actual decision maker, not the person responsible for legal analysis of the policy. There are innumerable actions that are perfectly constitutional but are terrible policies. Why would we hold the lawyer responsible if all he did was confirm that the action is not unconstitutional? Does your position apply in other contexts? If the President sought advice on whether the ACA was constitutional and then years later (hypothetically) the Supreme Court split 5-4 holding the law unconstitutional, should the lawyer that wrote the memo on what was then an open constitutional issue be held responsible for not telling his client that he “can’t do what he wants to do”? Wouldn’t your position chill the ability of the President to get competent legal advice?

I haven’t seen the memo, nor have you. For all I know, Barron makes a superb and compelling case that the targeted killing of certain American citizens is perfectly legal.

And why would you say that I’m holding Barron responsible for the president’s policies? I’m perfectly well aware that neither Barron nor anyone else in DOJ was setting the US’s drone strike policy. My point is simply that Markey’s explanation is a poor one, because it assumes that the role of OLC is to find a legal justification for whatever the president says he wants to do. It’s not.

I thought you were holding Barron responsible for either the policy itself or the bad legal advice that led to the policy. You have clarified that you don’t hold him responsible for the policy decision. And now you seem to concede that he may have provided perfectly good legal advice. So what exactly is your objection to his confirmation?

Nothing that has been written here attempts to hold Mr. Barron responsible for the policy itself. Nor has anyone claimed that the legal advice contained in the memo was “bad” — since the memo hasn’t been published, there’s no way to know.

The point is that good legal advice might also have argued AGAINST, rather than for, the policy. It is clear from what has been released that Mr. Barron chose not to argue against the use of drones.

That choice — to argue in favor of the drone strikes, rather than against them — is the choice being questioned. Mr. Markey’s statements are not responsive to that question.

The action at issue is either unconstitutional or it is not. Clearly there are potential arguments on both sides. The job of an OLC attorney, as explained by David above, is to determine which position (constitutional vs unconstitutional) has a more sound legal basis. Mr. Barron’s application of the relevant legal precedents would lead him to conclude which side has the stronger argument. There is no “choice” to make – Mr. Barron would have to reach a conclusion based on his legal analysis.

Let’s assume that Mr. Barron hates the policy personally, but his legal analysis concluded that it would pass constitutional muster. Do you think he has a choice, or that he is bound to give what he believes is the best legal advice?

In your world lawyers and judges just plug the arguments into a big law machine and they have no choice what comes out the other end.
Since lawyers and judges don’t need to exercise any choice or judgment, why not replace them with a worker who comes in to turn on the law machine?
To protect the majesty of the law we could have the worker put on a robe, then take it off at the end of the day, pick up a broom and sweep up.

As you observe, clearly there are arguments on both sides of this question. That, itself, is why I disagree that “the action at issue is either unconstitutional or it is not”. When you write “his legal analysis concluded that it would pass constitutional muster”, you seem to acknowledge this reality — “pass constitutional muster” certainly is not the same as “the only choice”.

I think that he most certainly did have a choice. I expect a nominee for a federal judge to have a strong bias, during his or her career, towards protecting the constitutional rights — not to mention lives — of American citizens. I think this bias specifically includes those accused of crimes.

I think he did have a choice. I think “best legal advice” includes a judgement about morality. I don’t doubt that John Yoo found similar arguments to defend a policy of kidnapping, abuse, and torture.

A client to look for legal advice from a lawyer, and tun elsewhere for moral guidance. To take your example from above, would you want your divorce attorney to inform you whether your desired custody arrangement is reasonable under MA family law, or to give you advice on how to be a better father?

I think a lawyer has an obligation to provide the correct legal guidance based on an informed analysis of the proper legal precedents rather than to twist the analysis to meet the lawyer’s personal policy preferences. So if the lawyer is following this obligation, there is no choice.

My divorce attorneys did NOT use the child support guidelines to articulate a carefully-crafted strategy calculated to avoid my making child support payments. They did not counsel me on what dirt I might dig up on my ex-wife in order to win physical custody. They did not suggest ways that I could hide assets or evade my obligations as a father. Instead, they looked at the obvious spirit of the law. They took seriously the reality that the “best interests of the children” is the guiding principle.

They most certainly DID offer legal advice on how to be a better father: pay my support obligations, see my children as frequently as the law allows, provide a healthy, safe, and loving home for them when they were with me, protect them from the hostility displayed relentlessly by their mother, keep them out of the constant battles she began, and host of similar guidance.

I wonder if your comments are the result of your own first-hand experience with attorneys, or are perhaps extrapolated from what you think attorneys do. In my experience, and in the kind of society I want to live in, “moral” and “legal” are aligned far more often than they are conflicted.

It appears to me that if any “twisting” to meet “policy preferences” was done, it was done by Mr. Barron in order to somehow excuse an action that is, on its face, both immoral and unconstitutional.

Often what is “moral” and what is “legal” are perfectly aligned and you can meet both your own moral standards and society’s legal obligations at the same time. But what is “legal” is a set standard for all, what is “moral” is subjective and will differ person to person. In those cases a lawyer’s advice will cover what is “legal” only. But of course you know that you cannot rely on your attorney’s for moral guidance in all cases. If your attorney had advised you of a loophole in MA law that would avoid child support obligations that you believed you had a moral obligation to pay, then you wouldn’t take his advice and pursue that position.

President Obama’s job was to decide whether the pursue a drone strike against a particular individual. President Obama should have evaluated the practical, legal, fiscal, moral, etc implications of that action. David Barron’s job was to write a memo on whether the action violates any federal, international, or constitutional provisions. You seem to want to hold David Barron responsible for the moral implications of the decision. I would suggest that your ire would be better aimed at the President rather than his legal counsel.

I AM angry at Barack Obama for ordering the strike. I agree with you that Mr. Obama should be held responsible for that immoral and, in my view, illegal act. That does not, however, excuse Mr. Barron.

Whether intentional or not, I think your example of a divorce attorney identifying a loophole is apt — I think that’s what Mr. Barron did.

If that divorce attorney who identified the loophole had been nominated as a judge in probate court, I think it would be perfectly appropriate to challenge his nomination, particularly if the nomination was from me.

Similarly, I suggest that Mr. Barron should not have been nominated. I do hold Mr. Barron, and any other nominee like him, responsible for the choices his record shows. I think that’s why we have confirmation hearings.

This is all moot, of course, since he was confirmed. At the end of all this, I still think Mr. Markey’s argument was hollow and I am disappointed with both Mr. Markey and Ms. Warren for voting to confirm Mr. Barrow.

has been that the memo(s) should be made public before he was confirmed. That didn’t exactly happen, but the administration decided not to appeal the 2nd Circuit’s FOIA ruling, so at least a redacted version will be made public soon, and the administration did allow all Senators to read them. Not ideal, but better than things were a couple of weeks ago.

So I don’t actually object to his confirmation – to the contrary, I think he’ll probably be a good judge and that I’ll agree with him far more often than I disagree. I’ve never thought his legal work on the drone issue was disqualifying – if I did, why would I care about releasing the memo? I’d have just said he shouldn’t be confirmed, regardless of what the memo actually says, since we know what its bottom line is. But I didn’t say that.

My objection all along has been the administration’s keeping the memos secret, especially on an issue that’s this controversial. I think that’s bad precedent for a variety of reasons.

I guess I was attributing some of the more extreme objections in this thread to you as well – that he is “has no place on the bench” and that he has “shredded the constitution” all based on a memo that we haven’t even seen yet. I think its fair to expect an Administration to be forthcoming with the legal work done by an OLC attorney that it is nominating to a federal judgeship.

If we were still ALLOWING OBSTRUCTION, this nominee would not be on his way to the First Circuit Appeals Court. But with the ACTUALLY INTENDED CONSTITUTIONAL rules FINALLY BEING ENFORCED by Harry Reid, it only takes 51 votes (AKA A MAJORITY) to advance a nominee.

Misfires are regrettable, but drones on an overseas battlefield do not per se bother me. Citizenship is no shield if you are levying war, otherwise we would never be able to fire upon the Confederate Army.

The republicans would not have opposed him on the merits or lack of merits on the case, they would have simply blocked the nomination because they can’t stand it that this President was properly elected by the people of the USA, which hasn’t happened to a republican president since George H.W. Bush (41),

is that he was not on a battlefield, nor was he levying “war” in any commonly understood sense of the word (he was not himself a state capable of declaring or conducting “war”). That’s why it’s a hard case.

Presumably including the Commonwealth of Massachusetts. They should release the memos immediately. In fact, I wonder whether any secret laws should be allowed under the Constitution. How do they get around habeus corpus, I wonder?

If someone even designated an enemy combatant is hanging out in MA, he should be arrested and entitled to the full spectrum of due process. The only exception being if the suspect is actually shooting law enforcement can certainly shoot back.

A sad day in US history that this guy in now a judge and one Ginsberg retirement away from being nominated to the SCOTUS. This judge allows one branch of government to kill a US citizen traveling or living overseas just on an accusation. The new norm is now one can be killed by a secret, internal process in the executive branch. This new power may be in the hands of someone like Dick Cheney and Markey and Warren allowed it.

Thank you Bob for promoting this diary and warning us of the historical reference of giving such power to one person. Great job David for explaining to Johnk the difference between legal advise vs. legal representation. Barron gave legal advise to Obama that its okay to kill US citizens without being charged or a pre-trial hearing for that matter.

And than you Tom for carrying the ball here, taking some flak about supporting terrorists, but simply bring it back to the constitution and how Barron’s advise to Obama simply shredded that fine document. There are others, JimC, Fenway, and JC who are equally appalled by this nominee, and kept the topic focused on Barron’s memos, not the rights of a non-citizens vs. a US citizens and “We are the world” line of thinking.

Thank you guys and to all who gave positive views on our comments. It feels much better having supporters with you on an partuclar issue, than being a Lone Ranger.

I’ve known many lawyers that will sell their souls (and yours) for a fee. The
Board of Bar Overseers, Disciplinary Decisions makes fascinating reading… How many times does a CEO go to the legal department and say, “This is what we’re gonna do, justify it!”?